COVID-19 – Employment Law Information Note

The coronavirus, which originated in the city of Wuhan, People’s Republic of China, and caused the disease called Covid-19, has spread to all continents except Antarctica and to nearly 130 countries. As of the writing of this article, there have been 670 confirmed cases in our country as well. In light of these developments, various measures have been taken by public authorities to prevent the spread of the outbreak. In the private sector, discussions have also begun on the implementation of remote work for a certain period and granting paid or unpaid leave to employees. This article aims to evaluate the potential issues that may arise in employment relationships due to the coronavirus within the context of labor law. Since a situation like this has not been seen before, some issues will only become clear with the decisions that the Court of Cassation will make in the future. Nevertheless, we have tried to express our opinions in accordance with labor law principles, making interpretations to the best of our ability. In cases of controversy, the contributions and criticisms of our colleagues will be extremely beneficial in the development of labor law and finding solutions to the challenges that will arise.

The number of people infected with the coronavirus in our country is increasing day by day. It is clear that this situation will have significant effects on the working life. In the continuation of the article, we have attempted to evaluate the consequences of possible scenarios.

Summary

An employee who contracts the coronavirus does not have the right to terminate their employment contract for just this reason.

If an employer or employee in a workplace has contracted the coronavirus and has a direct relationship with employees, they may have the right to terminate their employment contracts for just cause.

In the event of the workplace being closed for more than one week or quarantined due to the coronavirus pandemic, employees may have the right to terminate their employment contracts for just cause. However, if the employer continues to pay wages beyond the one-week period, the employee may not have the right to terminate for just cause.

If the employer fails to take necessary precautions due to the coronavirus pandemic, the employee may have the right to terminate the employment contract for just cause.

Obtaining a health report indicating that the employee has contracted the coronavirus may give the employer the right to terminate the employment contract for just cause if this process exceeds the employee’s notice period by 6 weeks.

If national or regional quarantine is declared by public authorities and lasts for more than one week, the employer may have the right to terminate the employee’s employment contract for just cause.

In all the termination scenarios mentioned above, the employee is entitled to severance pay.

Employers cannot unilaterally place employees on unpaid leave due to the coronavirus pandemic. Employee consent is required for unpaid leave.

Employers can initiate collective annual leave between the beginning of April and the end of October in the workplace, but outside of these dates, collective annual leave is not possible.

Employers may place employees on administrative paid leave due to the coronavirus pandemic.

Employers may implement a home office policy without obtaining the consent of employees as long as there are no changes to their rights (except for travel expenses).

In the event of work stoppage due to the coronavirus pandemic, the employer can require compensatory work to be carried out for the periods not worked within two months.

Employers may apply for short-term working allowance through İŞKUR (Turkish Employment Agency) if the working hours in the workplace have significantly decreased or stopped due to the coronavirus pandemic.

Employee’s Termination Right

An employee has the right to terminate their employment contract for just cause when the performance of the work specified in the employment contract becomes dangerous to the health or livelihood of the employee due to the nature of the work (Labor Law – Article 24/ I-a).

According to this regulation, for the right to termination to arise, the danger must stem from the nature of the work, and this danger must affect the health or livelihood of the employee. Therefore, if an employee experiences health problems arising from the performance of the job and this situation poses a danger to them, they can terminate the employment contract for just cause. For example, if an employee working as an operator of heavy machinery experiences damage to their ears and nervous system, we can discuss the possibility of termination. Additionally, if an employee working in a mine develops health problems in their lungs due to dust or if a worker involved in lifting and carrying heavy loads experiences physical problems related to skeletal health, these can also constitute grounds for termination.

Illnesses arising from the nature of the work are generally considered occupational diseases. The Court of Cassation does not consider illnesses that do not arise from the nature of the work as grounds for justifiable termination. Therefore, an employee who contracts the coronavirus would not have the right to terminate their employment contract based on this provision.

An employee has the right to terminate their employment contract for just cause when another employee or employer with whom they closely and directly interact contracts a contagious disease or a disease that is incompatible with the employee’s job (Labor Law – Article 24/I-b).

According to this regulation, the mere contraction of a contagious disease by another employee or employer can be a valid reason for justifiable termination. To apply this provision, the concept of a “contagious disease” needs to be defined. For example, the common cold or the flu is considered contagious. However, for a contagious disease to be grounds for justifiable termination, it must pose a danger to the employee’s health. The opinion of expert doctors regarding the contagiousness and danger of the disease will be important in this regard. It is mandatory for the employee to obtain a medical report for their right to terminate to be valid.

Furthermore, the employee must have a close and direct relationship with the employee or employer who has contracted the contagious disease.

In conclusion, if an employer or employee in a workplace contracts the highly dangerous and contagious coronavirus, employees who have a close and direct relationship with this person will have the opportunity to terminate their employment contract for just cause.

Yani birlikte çalıştığı In other words, if an employee contracts the coronavirus and has a close and direct relationship with the employer or fellow employees they work with, they can terminate the employment contract for just cause.veya işçilerden biri corona virüsüne yakalanan işçi, iş sözleşmesini haklı nedenle feshedebilir.

However, an employee who contracts the coronavirus does not have the right to terminate their employment contract for just cause.

İşçinin çalıştığı Employee’s Right to Terminate Due to Extended Cessation of Work for Compelling Reasonsbir haftadan fazla süreyle işin durmasını gerektirecek zorlayıcı sebeplerin ortaya çıkması

If compelling reasons arise in the workplace where the employee works, causing work to cease for more than one week, the employee may terminate their employment contract for just cause. Compelling reasons are unforeseeable, unavoidable, and external events. For instance, any kind of natural disaster like an earthquake, flood, or water inundation can be considered compelling reasons if they lead to the cessation of work. It’s important that the compelling reason is related to the workplace. In this sense, if the workplace or the building where work is conducted is quarantined due to the spread of the coronavirus, it will be considered a compelling reason as it necessitates the cessation of work. For the employee to be able to terminate the employment contract for just cause, work must cease for more than one week due to the compelling reason. In the case of a national quarantine, whether the employee has the right to terminate for just cause can be debated since it is not related to the workplace. However, employees working in places like bars, clubs, gyms, etc., that are closed by the decision of public authorities can terminate their employment contracts for just cause after one week since this decision is related to the workplace.

In the presence of the above conditions, the employee can terminate the employment contract and request severance pay. During the period of compelling reasons, the employment contract will be in abeyance. According to Article 40 of the Labor Law, for the employee who cannot work or is not employed due to compelling reasons, half of their daily wage is paid for up to one week during this waiting period.

With the suspension of the employment contract, both the employee’s obligation to work and the employer’s obligation to pay wages are also suspended.

However, in the case of a national quarantine and curfew, if the employer continues to pay the employee’s wages after one week, in our opinion, the employee does not have the right to terminate for just cause. In this situation, the employer is effectively activating the suspended employment contract but is not requesting the employee to fulfill their work obligation.

Failure to Take Occupational Health and Safety Measures

According to the Occupational Health and Safety Law, employees who are facing a serious and imminent danger can request the determination of the situation and the implementation of necessary measures by applying to the Occupational Health and Safety Board, or in workplaces where such a board does not exist, they can apply to the employer. There is no doubt that the coronavirus represents a serious and imminent danger for employees. Employees have the right to demand that necessary precautions be taken in their workplaces.

Moreover, according to the same law, if employees request necessary precautions but they are not implemented, they can terminate their employment contracts in accordance with the provisions of the applicable laws. Employees who are subject to the provisions of the Labor Law can terminate their employment contracts for just cause if necessary precautions are not taken and can claim severance pay.

Employer’s Right to Terminate

Prohibition of Employee’s Work

According to the General Health Law, it is possible to prohibit individuals who have contracted infectious diseases similar to the coronavirus from working. This decision can be made by general health councils. The work ban can continue until the disease has ended. During this period, the employment contract will be in abeyance.

Termination Due to Health Reasons

According to the Labor Law, an employer’s right to terminate the employment contract without notice arises when the employee’s health issues, accidents, childbirth, pregnancy, and similar situations exceed the notice periods determined based on the employee’s length of service in the workplace by six weeks. If an employee obtains a health report confirming their contraction of the coronavirus, and if this period exceeds six weeks from the employee’s notice period, the employer has the right to terminate the employment contract for just cause. During this period, the employment contract will be in abeyance, and the employee will not be entitled to any wages. However, if the employment contract is terminated for just cause, severance pay will be paid.

Termination Due to Compelling Reasons Preventing the Employee from Working for More Than One Week

According to the Labor Law, the employer has the right to terminate the employment contract for just cause when a compelling reason arises that prevents the employee from working for more than one week. Compelling reasons are unforeseeable, unavoidable, and external circumstances.

For example, compelling reasons can include natural events like earthquakes, floods, landslides, as well as legal reasons such as curfew in the region where the employee resides or quarantine due to an epidemic. For the employer’s right to terminate for just cause to arise, the employee must be unable to go to work and unable to work due to the compelling reason. In other words, the compelling reason should arise in the employee’s personal or immediate surroundings. If the compelling reason is directly related to the workplace, it may result in the employee’s right to terminate rather than the employer’s.

If public authorities declare quarantine for the entire country or for the region where the employee lives or where the workplace is located, and this situation lasts for more than one week, the employer has the right to terminate the employment contract for just cause. However, severance pay must be paid to the employee in this case.

According to a decision of the 22nd Civil Chamber of the Court of Cassation dated May 22, 2017, if the region where the workplace is located is quarantined, it would be more appropriate for the employer to offer the employee a position in another branch, if available, before carrying out the termination process.

During the period of compelling reasons, the employment contract will be in abeyance. According to Article 40 of the Labor Law, if the employee is unable to work or is not employed due to compelling reasons, they are entitled to receive half of their daily wage for up to one week during this waiting period. If the employer does not exercise their right to terminate after one week, the contract will continue to be in abeyance.

With the suspension of the employment contract, both the employee’s obligation to work and the employer’s obligation to pay wages are also suspended.

Placing Workers on Unpaid Leave

Employers may want to place workers on unpaid leave to prevent the spread of the coronavirus. According to the provisions of the Labor Law, as a general rule, employers cannot unilaterally place employees on unpaid leave.

The application of unpaid leave results in the suspension of the employment contract. While the employer does not have an obligation to pay wages during this period, the employee is relieved of their duty to work. Even if temporary, the application of unpaid leave is considered a substantial change in working conditions under Article 22 of the Labor Law. This change must be communicated to the employee in writing. Changes not accepted by the employee in writing within six business days will not bind the employee. If the employee does not accept the proposed change within this period, the employer can terminate the employment contract in writing, stating that the change is based on valid reasons or that there is another valid reason for termination, while complying with the notice period.

If the employer initiates the application of unpaid leave without adhering to the rules mentioned above, employees who do not accept unpaid leave have the right to terminate their employment contract for just cause. According to the decisions of the Court of Cassation, the employer’s unilateral placement of employees on unpaid leave constitutes a termination of the employment contract. In other words, employees can claim their rights from the judicial authorities, demand severance pay, and even file a reinstatement lawsuit, arguing that the employer’s unilateral decision to place them on unpaid leave is tantamount to termination.

In a decision dated March 25, 2010, the 9th Civil Chamber of the Court of Cassation stated: “In the concrete case, the plaintiff was placed on unpaid leave without their consent. The defendant has not provided any evidence to prove that the employee’s consent and approval were obtained. Therefore, since a termination has been carried out by the employer, the plaintiff is entitled to notice pay.”

Similarly, in a decision dated December 24, 2019, the 22nd Civil Chamber of the Court of Cassation ruled: “It is established that the employees were placed on unpaid leave without their consent, and this situation is also considered a termination by the employer. Therefore, the rejection of the plaintiff’s claim for notice pay with a written explanation is incorrect.”

As seen in these decisions, the employer’s initiation of unpaid leave without the employee’s consent constitutes unfair dismissal. Therefore, employees can claim severance pay and notice pay, and within the legal time frame, they can file a reinstatement lawsuit.

In conclusion, employers cannot unilaterally initiate the application of unpaid leave. Employers should present a properly prepared proposal for unpaid leave to employees. If the proposal for unpaid leave is accepted, the practice should be implemented accordingly.

Placing Workers on Paid Leave

It is possible for employers to place workers on paid leave due to the coronavirus pandemic. This practice should be implemented in accordance with the employer’s obligation to treat employees equally.

Home Office Implementation

Employers have the option to request employees to perform their duties through remote work to prevent the spread of the coronavirus pandemic. It is appropriate for employers to make no changes to the conditions of employment other than the change in the workplace. Employee consent is not required for this implementation, and the unilateral decision of the employer will be sufficient.

Compensatory Work

According to Article 7 of the Regulation on Working Hours, in cases where work is stopped for mandatory reasons, the workplace is closed before or after national holidays or public holidays, or for similar reasons, where normal working hours at the workplace are significantly reduced or completely canceled, or except for the legal leaves stipulated in Law No. 4857, if the employee is given leave at the request of the employee, the work not performed by the employee during these periods is compensatory work.

The employer who will have compensatory work done must clearly state the reason for this work based on the reasons mentioned above, the date on which the work will start, and notify the relevant employees.

Compensatory work can be carried out within 2 months following the elimination of the mandatory reason that constitutes its source and the start of the normal working period of the workplace. The notification mentioned above must be made with the start of the working period. Compensatory work cannot exceed 3 hours a day, provided that it does not exceed the maximum daily working time of 11 hours. Compensatory work cannot be carried out on holidays.

In this case, for example, if employees request administrative paid leave due to the coronavirus, compensatory work can be applied.

Likewise, in cases where work is stopped for mandatory reasons at the workplace, compensatory work can also be carried out. For the employer to have compensatory work done, it is sufficient for work to have stopped for even one day at the workplace. Therefore, if the workplace is closed or holidays are taken due to the coronavirus pandemic, the employer can arrange compensatory work.

Short-Time Work Scheme

The short-time work scheme, regulated in Law No. 4447 on Unemployment Insurance, provides income support to insured individuals for the period they cannot work in cases where there is a temporary reduction of at least one-third of the weekly working hours in the workplace or the activity in the workplace is completely or partially suspended for at least four weeks due to general economic, sectoral, regional crises, or compelling reasons, without the requirement of continuity.

In the relevant legislation, compelling reasons are listed as events such as earthquakes, fires, floods, epidemic diseases, mobilization, and similar reasons that are not caused by the employer’s own actions, cannot be predicted in advance, cannot be eliminated as a result, and result in the temporary reduction of working hours or the complete or partial suspension of activities. Under the short-time work scheme, employees receive short-time work allowance, and their General Health Insurance (GSS) premiums are also covered. To be eligible for short-time work allowance, the employee must be entitled to unemployment insurance.

According to the relevant legislation, in the case of short-time work due to compelling reasons, payments start after the one-week period stipulated in Article 24, III. paragraph of the Labor Law and Article 40 of the same law. In other words, in this case, for the first week after the compelling reason arises, the employer will pay half of the employee’s wages, and then the short-time work allowance will begin to be paid.

For example, individuals who work at the minimum wage level can receive a short-time work allowance of 1,752.40. It is not possible for employees to request the employer to compensate for the income loss due to short-time work.

To apply for the short-time work scheme, the employer should apply to the Turkish Employment Agency (İŞKUR) stating that the working hours in the workplace have significantly reduced or stopped due to the coronavirus pandemic, and it should be determined by the workplace inspection that the workplace is affected by this situation.

Putting Employees on Annual Leave

Employers are considering putting their employees on annual leave collectively due to the coronavirus pandemic.

According to Article 10 of the Annual Paid Leave Regulation, employers can implement collective leave that covers all or some of the employees during the period between the beginning of April and the end of October. It is possible to determine the collective leave periods to include employees who have not yet earned their annual paid leave rights during these periods. In other words, employees who have not completed one year of service will also benefit from this practice.

Employers may also exclude a sufficient number of employees from collective leave for essential purposes, such as the protection of the workplace, maintenance of tools, equipment, facilities, or machines, preparation, cleaning, or ensuring safety in the workplace.

As mentioned above, collective leave can only be implemented during the period between the beginning of April and the end of October. Outside of these dates, it would not be legally permissible for the employer to unilaterally initiate collective leave.

[1] 4857 Sayılı İş Kanununda İşçinin Haklı Nedenle Fesih Hakkı ve Sonuçları, Merve YEŞİLBAŞ ORHAN

[2] İş Hukuku, Sarper Süzek

[3] İşverenin Haklı Nedenle Fesih Hakkı, Seda Arslan

[4] Yargıtay Kararı – 22. HD., E. 2017/33335 K. 2017/11772 T. 22.5.2017 – www.lexpera.com

[5] Bireysel İş Hukuku, Sarper Süzek

[6] Yargıtay Kararı – 9. HD., E. 2008/21835 K. 2010/7909 T. 25.03.2010 – www.lexpera.com

[1] https://www.bbc.com/turkce/haberler-dunya-51815676